posted at 3:41 pm on September 3, 2014 by Allahpundit

The judge, Martin Feldman, is a Reagan appointee. (Then again, so is Kennedy.) Ed e-mails to note that he’s the same judge who held the Obama administration in contempt a few years ago for its moratorium on permits for deep-water oil drilling. His opinion is here. It’s a mix of deference to federalism, judicial modesty absent guiding precedent, and warnings of a slippery slope. Key bit from the end:

On the law itself, he declines to declare that gays are a “suspect class” under the Equal Protection Clause — that’s a job for the Supremes, says Feldman — which means that laws targeting them are owed no special scrutiny by the courts. In that case, all Louisiana needs to do is show that its gay-marriage ban is rationally related to some legitimate state interest. In most SSM cases since Windsor was decided, this is where the state’s case breaks down. Courts have repeatedly found that gay-marriage bans, which are supposed to foster procreation and encourage child-rearing by parents of different genders, have no rational basis because marriage isn’t reserved for straights who are willing and able to have kids. Feldman breaks from the pack:

It’s a matter of deference, in other words. Just because Louisiana allows some exceptions for infertile straight couples to its overall scheme of using marriage to encourage procreation and child-rearing doesn’t mean the court’s going to force it to make other exceptions. If a judge isn’t dealing with a “suspect class” then he owes the state’s legislature every benefit of the doubt.

As for the other perennial argument in SSM cases, that bans deny gays their fundamental right to marry under the Due Process Clause, Feldman knocks that down by disputing the definition of the term. The right to marry is deeply ingrained in the country’s law and history and is therefore fundamental, he says; the right to marry someone of the same-sex, specifically, isn’t. How broadly you imagine the scope of the right determines whether you agree. No telling how Anthony Kennedy will come down on that, but re-read some of the key passages in Windsor for a clue. One of the core points in Kennedy’s prior landmark opinions in gay-rights cases, especially the case striking down sodomy laws, is that gays are entitled to the same constitutional protections for intimate behavior that straights are. It would be odd if he followed that up by reading the right to marriage the way Feldman does, as a right inherently limited to people of different genders. And it’s not just RINOs who think so: Scalia, dissenting in the Windsor case, laughed at Kennedy’s opinion for being a transparent precursor to eventually finding that the Due Process Clause grants citizens the right to marry another person, not a right to marry only a person of the other gender. I think Feldman’s destined to be overturned, but this is a hopeful note at least for opponents of SSM.

Comments

…The state will pretend to get out of the marriage business all right, but then the state inevitably will be caught up in the business of defining who counts as a parent. Up until now, that job has been largely left to Mother Nature, with the state simply recording the natural reality of parenthood….

In exceptional cases where the natural parents could not care for their children, the child may be placed for adoption. But adoption does not undermine the biological basis of parenthood. In fact, everything about adoption screams that biology matters. Natural parents do not give up their children lightly, and mothers have the opportunity to change their minds after their babies are born. The state does not remove children from their natural parents without good cause, and with procedural safeguards. In most jurisdictions, adopted children have some opportunity to discover their biological origins.

But when the family courts get involved in resolving disputes between contracting parents, they are being asked to give parental rights to someone who is not related to the child, either by blood or adoption. Let us call this person a “non-parent.” In response to these cases, the courts are defining a new category of parenthood….

Think about it. The concepts of “mother” and “father” are natural, pre-political concepts, immediately intelligible to the human race. Up until now, the state has seen its role as simply recording this natural reality. But now parenthood is becoming the creation of the state. This is what “contract parenting” will come to mean: the state taking over parenthood and recreating it for its own purposes. Do you seriously think this can possibly be a “libertarian” or minimum-government move? I do not think that it can.

As a libertarian myself, I have been quite disappointed that the “default” libertarian position on marriage has become little more than a sound-bite: “Let’s get the state out of the marriage business.” With all due respect, this position is unsound….

“Get the government out of the marriage business,” or its close cousin, “Leave it to the churches,” is a superficially appealing slogan. When I hear this, I often get the feeling that it is a way of avoiding the unpleasant dispute currently raging over the proper definition of marriage. I sense that its proponents are hoping we can remove this whole contentious topic from the public square and put it into the private sector. Each person or group can have its own version of marriage. The state, with its powerful coercive instruments, need never get involved in resolving this seemingly impossible stalemate.

While I understand this impulse, I believe it is fundamentally misguided. Taking a stand on the purpose and meaning of marriage is unavoidable. Here is why.

Marriage is society’s primary institutional arrangement that defines parenthood. Marriage attaches mothers and fathers to their children and to one another. A woman’s husband is presumed to be the father of any children she bears during the life of their union. These two people are the legally recognized parents of this child, and no one else is. The grandparents are not; the former boyfriend is not; the nanny who spends all day with the kids is not. These two hold their parental rights against all other competing claimants. This is an intrinsically social, public function of marriage that cannot be privatized.

You might reply, “Dr. Morse, your understanding of marriage is all about parenthood, and not about marriage itself. Not every marriage has children, after all.” And it is perfectly true: not every marriage has children. But every child has parents. This objection stands marriage on its head by looking at it purely from the adult’s perspective, instead of the child’s. The fact that this objection is so common shows how far we have strayed from understanding the public purpose of marriage, as opposed to the many private reasons that people have for getting married.

That might be what you think it is, but reality and your characterizations aren’t always the same thing.

You’ve also (inadvertently, I hope) turned the legal argument on its head. The advocates of same-sex marriage don’t need to present a rational basis for its legalization. It’s the government that needs to come up with a rational basis for discriminating against it. They’ve not had a great deal of luck with that so far.

No, if that’s what you and he really wanted you’d be arguing for the government dissolution of marriage altogether.

That is actually my ideal scenario but there’s no way it will ever happen so I’m not going to waste my time on what is, for the moment, an incredibly unrealistic aim.

But you’re not… you’re arguing for the redefinition of marriage from one of establishing a family,

Here’s another one of those cool phrases that gets tossed around yet the meaning is somewhat cloudy. “establishing a family.” What does that mean exactly? Does the signing of the marriage license or holding a ceremony make something a family? Must there be children for it to be a family? Do those children have to be the biological offspring of the two people in the marriage for it to be a family?

to which the government has a legal authority to further its own support to one of … government must recognize my LUUVVVV.

Is it not like that for childless heterosexual couples right now?

There’s no reality basis to it other than making a social-utopian “gotcha”

What do you mean by “reality basis”?

and now the rest of the US’ foundational liberties like freedom of association

How exactly will your freedom of association be affected by the legalization of same-sex marriage, and how do you know?

and religion

How exactly will your freedom of religion be affected, and how do you know?

and free speech

How exactly will your freedom of speech be affected, and how do you know?

are now under full assault to assuage your smug self-sense of satisfaction and (oddly enough) personal morality.

If marriage is just the emotional bond “that matters most” to you — in the revealing words of the circuit judge who struck down California Proposition 8 — then personal tastes or a couple’s subjective preferences aside, there is no reason of principle for marriage to be pledged to permanence. Or sexually exclusive rather than “open.” Or limited to two spouses. Or oriented to family life and shaped by its demands….

But don’t take our word for it. Many prominent leaders of the campaign to redefine marriage make precisely the same point. (We [Anderson, Girgis, and George] provide many more examples, and full citations, in the amicus brief we filed with the Supreme Court on the harms of redefining marriage.)

University of Calgary Professor Elizabeth Brake supports “minimal marriage,” in which people distribute whichever duties they choose, among however many partners, of whatever sex.

NYU Professor Judith Stacey hopes that redefining marriage would give marriage “varied, creative, and adaptive contours …” and lead to acceptance of “small group marriages.” In the manifesto “Beyond Same-Sex Marriage,” 300 leading “LGBT and allied” scholars and activists call for the recognition of multiple partner relationships.

“It most certainly will do so,” she says, “and that will make marriage a far better concept than it previously has been.”

Author Michelangelo Signorile urges same-sex partners to “demand the right to marry not as a way of adhering to society’s moral codes but rather to debunk a myth and radically alter an archaic institution.” They should “fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely, because the most subversive action lesbians and gay men can undertake … is to transform the notion of ‘family’ entirely.”

These leading same-sex marriage advocates are correct.

Here’s a quote from page 70 of What Is Marriage?

Professor Ellen Willis, another revisionist, celebrates the fact that “conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart.”

Once again there are those on the Left who know exactly what they’re doing and why, and they’re more than happy to manipulate the useful idiots who fall for their slogans and propaganda.

The story of a female throuple in Massachusetts (with a baby on the way) provides further confirmation, as if any were needed, of the proposition that “ideas have consequences.” Once one has abandoned belief in marriage as a conjugal bond (with its central structuring norm of sexual complementarity) in favor of a concept of “marriage” as a form of sexual-romantic companionship or domestic partnership (“love makes a family”), then what possible principle could be identified for a norm “restricting” marriage to two-person partnerships, as opposed to polyamorous sexual ensembles of three or more persons?

Sherif Girgis, Ryan Anderson, and I (and others) have been asking this question—or posing this challenge—to advocates of the re-definition of marriage for some years. No one has been able to answer the question or meet the challenge. So far as I am aware, only Jonathan Rauch has made a serious effort—and completely failed. The truth is that on the premises that one must put into place to generate the concept of “same-sex marriage,” the argument the women in the story below make on behalf of their own “polyamorous marriage” goes through without a hitch….

And that poor child has a father. Dads are not superfluous to the well-being of children. Their presence–or their absence–make a crucial difference to a child

And as I’ve pointed out to you before – Not 50 years ago a woman couldn’t earn enough money to support herself at a job. Men were the breadwinners of society and single women either lived lowly or with families. The law was a workaround to that “reality”, not a statement of incestual marriage (which is specifically why they had to be over 65)

Skywise on September 4, 2014 at 12:07 AM

That woman would have had to marry her cousin in order to be financially supported by that cousin? That obviously single man would only be willing to support his destitute cousin if she married him?

The notion of marriage equality was never about marriage or about equality. It’s all about the wrapping paper. It’s been packaged as an end in itself, but it is principally just a means to a deeper end. It is the means by which marriage extinction – the true target — can be achieved. If marriage and family are permitted to exist autonomously, power can be de-centralized in society. So the family has always been a thorn in the side of central planners and totalitarians. The connection between its abolition and the limitless growth of the state should be crystal clear. So anyone who has bought into this movement, or is tempted to do so, would want to step back and take a harder look.

See especially what Stella says in the last two sections.

Ending Marriage Leads To A Centralized All Powerful State

The hard push for marriage equality was never about marriage. Neither was it about equality. It’s a convenient vehicle to abolish civil marriage… Abolishing marriage strips the family of its autonomy by placing it much more directly under the regulating control of the state.

Once the state no longer has to recognize the marriage relationship and its presumption of privilege and privacy, we all become atomized individuals in the eyes of the state, officially strangers to one another…

At some point, we must conclude that freedom of association has its source in state acceptance of the core family as the primary buffer zone between the individual and the state. There is no escaping this fact, no matter a particular generation’s attitude or public opinion polling, or advances in medical technology, or whatever else comes our way.

Understanding that marriage has an objective structure with inherent characteristics is important because it clarifies that the state does not invent or define marriage.

Legal games are being played today by the Left, because pretending and persuading that marriage is an anything goes emotional label leads the way for expansion of government control. What the State gives, the State can take away. Think of the Declaration of Independence and its words on unalienable rights.

This is from Stella’s column.

Marriage Is The Template For Freedom Of Association

Without state recognition of – and respect for – marriage, can freedom of association survive? How so? On what basis?

Civil marriage provides the entire basis for presuming the rights and responsibilities of biological parents to raise their own children. It also assumes the right of spouses to refuse to testify against one another in court. It presumes survivorship – in guardianship of children as well as inheritance of property. If we abolish civil marriage, these will no longer be rights by default, but rights to be distributed at the pleasure of a bureaucratic state.

When a couple enters into a civil marriage, they are not inviting the government into their relationship, but rather putting the government on notice that they are a family unit. It’s the couple – not the state – that’s in the driver’s seat. Otherwise, they needn’t marry. Otherwise, central planners wouldn’t be so intent on abolishing marriage as a private and autonomous association from which the state must keep its distance, unless one partner wishes to exit by divorce.

Children – i.e., all of us born into a family – inherit that presumption of autonomy and broadcast it into society. We do so whether or not we ever get married ourselves. The presumption of family autonomy and privacy informs our right to freely associate with others – through romances, friendships, business contracts, and so on. It would be catastrophic to freedom if we threw it away.

State recognition of this autonomy cannot exist without state recognition of marriage. In fact, traditional marriage — just like traditional oxygen if you will – helps all of society breathe more freely.

If civil marriage is abolished, you can say hello to the government at your bedroom door because that comfortable little meme about “getting the state out of the marriage business” will have flown out your bedroom window while you were sleeping.

blink, here. I’ve pulled myself off the bench to laugh about alchemist’s, the single topic commenter, stupid logic.

alchemist, tell as all again the rational basis for discriminating against multiple marriage, consanguineous marriage, etc.

It’s always fun to watch you twist into a pretzel in your attempts to fabricate some incredibly silly rational basis. Someday you’ll stop making stupid excuses for your bigotry. It will be when all the young people point and wonder who’s the old bigot babbling on about the mistakes the federal government made in finally allowing true marriage equality.

Just found this. The study began in 1938, and it continues today. The men who are still alive are now in their nineties. It’s fascinating, and it’s multiple cases in point on the impact of mom and dad and marriage.

Nothing quite like the Grant Study has ever been attempted; as Vaillant puts it, this research represents “one of the first vantage points the world has ever had on which to stand and look prospectively at a man’s life from eighteen to ninety.” The mountains of data collected over more than seven decades has become a rich trove for examining what factors present in a man’s younger years best predict whether he will be successful and happy into old age.

So those of you who scoff about the impact of redefining marriage on a society, you’re not thinking about what is best for building strong children. Children are the future, and life is a long game.

Regardless of the differences of opinions, I think it is good to see a dissenting view from the bench. Obviously these unions are becoming more and more accepted and that is easier when there is discussion and people learn more about each other. Not always pretty but I think it makes for a better society.

While I agree with tradition marriage making stronger children, we still have a problem that I find more pressing and mandatory that is hurting them and it is our school system. The uninformed and the uncaring don’t know what it takes to counteract what our children are being spoon fed daily.

Having a clusterfark of sarcasm, some grade-school level insults, ect…and very little understanding and learning through rational, intelligent discussion and debate. Some of these threads go better than others, depending on whom is involved in the conversations.

Just of out my own curiosity, what happened to northdallasthirty? Did he bolt, or was he booted? There are a couple more as well I haven’t seen in a while, but many I do see often. I don’t want to leave anyone out…and to use a term that sends shivers down my spine, this is something we do need to have a more detailed discussion of.

I wast to work on something…go through possibilities. For the record, I’ve been a senior mod at reddit’s Religion sub here:

http://www.reddit.com/r/religion (I’m jetboyterp there) and you can see my comment history on various subjects. I’ve done a few AMA’s and every so often try to engage the atheist subreddit in discussion.

All this, I would love to expand on. When those on all sides of the “Gay equality” issue can break out of their bubble, and really listen, that’s when things can move forward. As it is, most of us on one or more sides simply prefer to yell at each other. We’re never going to learn a thing from doing that.

Didn’t Kennedy’s decision defer the regulation of marriage to the States, and take it out of the hands of the Federal Government? This seems reasonable, just as in the case of still other states condoning same-sex marriages, or having differing ideas about when a person has reached an age of majority (and hence a right to marry).

Indeed, every point this judge makes is correct, and if you want a uniform law of the land, then the Federal Government must make it. But Kennedy has already said that the Feds can’t. And that’s that.

unclesmrgol on September 4, 2014 at 10:03 AM I don’t know if Kennedy ment Judical activism of all things this whole homosexual marriage issue has made people not trust the Judical system. Nothing is worse then a activist judge…or judges in this case.

SCOTUS has held the right to marry is protected by the Fourteenth Amendment. It’s substantive due process, and there have been a number of cases dealing with it.
alchemist19 on September 3, 2014 at 11:50 PM

Really. Name one that changed the definition of “marriage” at the state level.

Here’s another one of those cool phrases that gets tossed around yet the meaning is somewhat cloudy. “establishing a family.” What does that mean exactly? Does the signing of the marriage license or holding a ceremony make something a family? Must there be children for it to be a family? Do those children have to be the biological offspring of the two people in the marriage for it to be a family?

alchemist19 on September 4, 2014 at 2:48 AM

It’s amazing how many hard questions you suddenly have once you reject the obvious, time-tested, and biologically-based answer.

A family begins when a man and a woman make that commitment of marriage. Children add to the family. This is by design, because it allows children to be born into an existing family, thereby offering stability.

All legal arguments aside, two men living together will never be a family. They cannot reproduce, they will never share biological children.

To overcome the obvious, you propose one exception after another. What if the couple cannot reproduce? What if they adopt a child? What if only one of the parents is biological? What if one dies or the couple get divorced?

The exceptions allowed for exceptional circumstances, like adoption, do not change the basic nature of marriage and family.

We are all made male or female. Reproduction requires a male to copulate with a female. Marriage is the institution that normalizes and perpetuates this biological necessity into a stable family, which is required for healthy development of children.

This means that the human race quite literally cannot exist without normal marriage. In that sense, a man without a woman is always incomplete, and vice versa.

Some try to dismiss this as “traditional” marriage, primarily so they can argue that traditions can change. But it’s far deeper than “traditional.” Without a man and a woman, you don’t have a marriage. Try to establish a form of marriage without the two sexes, and you’re suddenly having to come up with, shall we say, creative reasoning to explain why such a marriage requires two people specifically, but not three or more.

Well, you see, gender is just a social construct. You can change anytime you want. All it takes is a little surgery and hormone treatment.

There Goes the Neighborhood on September 4, 2014 at 1:05 AM

Gender Biological sex.

Gender is how we perceive biological sex. Gender is a social construct, because the perception of what is masculine/feminine not only changes between cultures but over time as well

E.G., short hair on girls is variously considered masculine or feminine depending upon which decade you’re remembering. Or a man in a dress might be “weird” in America, but it’s not in Scotland.

Thus “gender” is a social construct, but I’m sure you knew that already.

ZachV on September 4, 2014 at 1:56 AM

There is some variation among cultures as to clothing, hair style, and some mannerisms. This is the argument for calling gender a “social construct.”

But when I mention surgery and hormone treatment, then we’ve moved far beyond cultural variations on gender roles. To take the “social construct” argument as a defense for sex change surgery and hormone treatments is staggeringly dishonest.

I’ll do you the courtesy of assuming you just hadn’t realized how dishonest your argument is.

It’s amazing how many hard questions you suddenly have once you reject the obvious, time-tested, and biologically-based answer.

I’m just trying to make heads or tails of the opposing position.

A family begins when a man and a woman make that commitment of marriage. Children add to the family. This is by design, because it allows children to be born into an existing family, thereby offering stability.

I was responding to someone claiming marriage was being redefined so as to no longer be establishing a family. You’re positing that a family begins at marriage whereas children, assuming there are any, are merely an addition to an existing family. If you’re correct then would it not mean that as far as what is and is not a family, it’s being married that make it one?

All legal arguments aside, two men living together will never be a family. They cannot reproduce, they will never share biological children.

Two sterile people of opposite genders will never share biological children. If they’re married then per your earlier statement would they still be a family?

To overcome the obvious, you propose one exception after another. What if the couple cannot reproduce? What if they adopt a child? What if only one of the parents is biological? What if one dies or the couple get divorced?

The exceptions allowed for exceptional circumstances, like adoption, do not change the basic nature of marriage and family.

Divorce is an exceptional circumstance? What is the basic nature of a family and how do you know that is the basic nature?

We are all made male or female. Reproduction requires a male to copulate with a female. Marriage is the institution that normalizes and perpetuates this biological necessity into a stable family, which is required for healthy development of children.

This means that the human race quite literally cannot exist without normal marriage.

Would it still be correct, and maybe even more correct, if you replaced the bolded part with the word “fornication”? Are the terms “marriage” and “procreation” interchangeable? Is it possible to do one without the other?

In that sense, a man without a woman is always incomplete, and vice versa.

How do you know this to be true?

Some try to dismiss this as “traditional” marriage, primarily so they can argue that traditions can change.

Is it your position that traditions either cannot or should not change?

But it’s far deeper than “traditional.” Without a man and a woman, you don’t have a marriage.

Is this a conclusion you arrived at by examining evidence or is it a starting assumption you posited on your own?

Try to establish a form of marriage without the two sexes, and you’re suddenly having to come up with, shall we say, creative reasoning to explain why such a marriage requires two people specifically, but not three or more.

There Goes the Neighborhood on September 4, 2014 at 11:58 AM

If one were to argue that marriage is all about procreation and perpetuation of the species and that that is the extent of the state interest then how can one argue against polygamy? I admit I’m not familiar with too many polygamists but from what I can see they procreate A LOT. If the state interest begins and ends with “More babies born,” then what, if anything, is your justification for forbidding bigamy?

*buzzer* In what way did Loving v Virginia redefine “marriage”? Removing the racial barrier imposed by the Commonwealth of Virginia did not change the definition of “marriage”: “Under our Constitution,” wrote Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Go to the back of the class and try again.

Newtie and the Beauty on September 4, 2014 at 12:42 PM

Virginia state law going back to the founding of the state and its time as a colony defined marriage as between two people of the same race. Did the Loving decision in 1967 not change the definition of marriage for that state?

All legal arguments aside, two men living together will never be a family. They cannot reproduce, they will never share biological children.

Two sterile people of opposite genders will never share biological children. If they’re married then per your earlier statement would they still be a family?

Still looking for the exception that will prove there’s no rule?

To overcome the obvious, you propose one exception after another. What if the couple cannot reproduce? What if they adopt a child? What if only one of the parents is biological? What if one dies or the couple get divorced?

The exceptions allowed for exceptional circumstances, like adoption, do not change the basic nature of marriage and family.

Divorce is an exceptional circumstance? What is the basic nature of a family and how do you know that is the basic nature?

And you’re still looking for the exception that will prove there’s no rule…

We are all made male or female. Reproduction requires a male to copulate with a female. Marriage is the institution that normalizes and perpetuates this biological necessity into a stable family, which is required for healthy development of children.

This means that the human race quite literally cannot exist without normal marriage.

Would it still be correct, and maybe even more correct, if you replaced the bolded part with the word “fornication”? Are the terms “marriage” and “procreation” interchangeable? Is it possible to do one without the other?

Theoretically, yes. Practically, no. The human race doesn’t just require reproduction, but also the raising of those children to adulthood. Without marriage, the human race might still exist, but would be little better than animals.

Some try to dismiss this as “traditional” marriage, primarily so they can argue that traditions can change.

Is it your position that traditions either cannot or should not change?

The argument is fallacious, not because it is not true that traditions can change, but because marriage can not be dismissed as just “traditional.”

But it’s far deeper than “traditional.” Without a man and a woman, you don’t have a marriage.

Is this a conclusion you arrived at by examining evidence or is it a starting assumption you posited on your own?

And what evidence have you examined to come to the conclusion that two men living together is a marriage? That is nothing but pure assumption, whereas I can easily point to tradition, biology, and human history as evidence.

It’s a hypocritical question. You ask for my evidence, but the burden of proof is not on me. I’m not the one arguing that marriage can be redefined at will.

Try to establish a form of marriage without the two sexes, and you’re suddenly having to come up with, shall we say, creative reasoning to explain why such a marriage requires two people specifically, but not three or more.

There Goes the Neighborhood on September 4, 2014 at 11:58 AM

If one were to argue that marriage is all about procreation and perpetuation of the species and that that is the extent of the state interest then how can one argue against polygamy? I admit I’m not familiar with too many polygamists but from what I can see they procreate A LOT. If the state interest begins and ends with “More babies born,” then what, if anything, is your justification for forbidding bigamy?

alchemist19 on September 4, 2014 at 12:24 PM

Isn’t it interesting how the question doesn’t arise until someone points out that the reason two people get married rather than three or four is because there are two sexes?

When you reject the simple and clear truths, you have to suddenly invent all kinds of extra rules.

This is where the SSM argument falls embarrassingly short. Once you reject the male-female nature of marriage, you have no definition left. You want to call restriction of marriage to a man and a woman “arbitrary,” but every other attempt to define marriage by a different standard is even more arbitrary.

And that’s why you shift the burden of proof: because your position is far more arbitrary and hypothetical than the normal understanding of marriage.

I’m just trying to understand what someone who was begging for an answer meant by their question. Someone said something about the wisdom of making “man” and “woman” interchangeable. I was asking if they meant strictly in the context of marriage or if they were implying something broader.

*buzzer* In what way did Loving v Virginia redefine “marriage”? Removing the racial barrier imposed by the Commonwealth of Virginia did not change the definition of “marriage”: “Under our Constitution,” wrote Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Go to the back of the class and try again.

Newtie and the Beauty on September 4, 2014 at 12:42 PM

Virginia state law going back to the founding of the state and its time as a colony defined marriage as between two people of the same race. Did the Loving decision in 1967 not change the definition of marriage for that state?

alchemist19 on September 4, 2014 at 2:07 PM

It didn’t change any definition of marriage. The law simply refused to allow marriage between mixed-race couples. In fact, the existence of the law pretty much proved that mixed-race couples were truly married, otherwise there would be no need to ban it.

Virginia state law going back to the founding of the state and its time as a colony defined marriage as between two people of the same race. Did the Loving decision in 1967 not change the definition of marriage for that state?
alchemist19 on September 4, 2014 at 2:07 PM

Loving removed the racial barrier–the basic definition of “marriage” was not changed.

More that I’m trying to figure out what the rule is because the opposition appears to have a consistency deficit. So I’ll ask again: Two sterile people of opposite genders will never share biological children. If they’re married then per your earlier statement would they still be a family?

And you’re still looking for the exception that will prove there’s no rule…

I’m trying to get to the root of your knowledge and understanding so that I might better understand your position. If you would explain to me in your own words what the basic nature of family is, and how you justify your answer to that question then I might better understand your way of thinking. So I’ll ask again: What is the basic nature of a family and how do you know that is the basic nature?

Theoretically, yes. Practically, no. The human race doesn’t just require reproduction, but also the raising of those children to adulthood. Without marriage, the human race might still exist, but would be little better than animals.

How is the goal of raising children into adulthood furthered by excluding same-sex couples from the legal status of civil marriage?

The argument is fallacious, not because it is not true that traditions can change, but because marriage can not be dismissed as just “traditional.”

Are you talking about marriage itself or the rules governing who can enter into one with whom?

And what evidence have you examined to come to the conclusion that two men living together is a marriage? That is nothing but pure assumption, whereas I can easily point to tradition, biology, and human history as evidence.

It’s a hypocritical question. You ask for my evidence, but the burden of proof is not on me. I’m not the one arguing that marriage can be redefined at will.

Aren’t “tradition” and “human history” basically the same in the context in which you’re using them?

Civil marriage is a state-created and state-defined institution. What does biology have to say about that?

Isn’t it interesting how the question doesn’t arise until someone points out that the reason two people get married rather than three or four is because there are two sexes?

When you reject the simple and clear truths, you have to suddenly invent all kinds of extra rules.

Which extra rules are just now being invented?

This is where the SSM argument falls embarrassingly short. Once you reject the male-female nature of marriage, you have no definition left.

Is there no definition of marriage in the 19 states where same-sex couples can legally wed today?

You want to call restriction of marriage to a man and a woman “arbitrary,” but every other attempt to define marriage by a different standard is even more arbitrary.

And that’s why you shift the burden of proof: because your position is far more arbitrary and hypothetical than the normal understanding of marriage.

There Goes the Neighborhood on September 4, 2014 at 2:09 PM

Is there a more ultimate arbiter than the Constitution when it comes to the law in this country?

It didn’t change any definition of marriage. The law simply refused to allow marriage between mixed-race couples. In fact, the existence of the law pretty much proved that mixed-race couples were truly married, otherwise there would be no need to ban it.

There Goes the Neighborhood on September 4, 2014 at 2:14 PM

It didn’t change any definition of marriage. The law simply refused to allow marriage between same-sex couples. In fact, the existence of the law pretty much proved that same-sex couples were truly married, otherwise there would be no need to ban it.

There was a 1662 Act which held that the child of a Negro woman and a white man would be free or slave according to the condition of his mother…

Mr. Hirschkop: …1691 was the first basic Act and it was entitled an Act for this pressing of outline slaves and the language of the Act is important while we go back to it because they talk about the prevention of bad abominable mixture and spurious issue and we’ll see that language time and again throughout all the judicial decisions referred to by the State…

I’m still reading this thread. I wanted to see if all the bigots were still on here. What about you? Do you still oppose marriage equality, or have you started to understand how bigoted it is to oppose it?

More that I’m trying to figure out what the rule is because the opposition appears to have a consistency deficit. So I’ll ask again: Two sterile people of opposite genders will never share biological children. If they’re married then per your earlier statement would they still be a family?

And you’re still looking for the exception that will prove there’s no rule…

I’m trying to get to the root of your knowledge and understanding so that I might better understand your position. If you would explain to me in your own words what the basic nature of family is, and how you justify your answer to that question then I might better understand your way of thinking. So I’ll ask again: What is the basic nature of a family and how do you know that is the basic nature?

Theoretically, yes. Practically, no. The human race doesn’t just require reproduction, but also the raising of those children to adulthood. Without marriage, the human race might still exist, but would be little better than animals.

How is the goal of raising children into adulthood furthered by excluding same-sex couples from the legal status of civil marriage?

The argument is fallacious, not because it is not true that traditions can change, but because marriage can not be dismissed as just “traditional.”

Are you talking about marriage itself or the rules governing who can enter into one with whom?

And what evidence have you examined to come to the conclusion that two men living together is a marriage? That is nothing but pure assumption, whereas I can easily point to tradition, biology, and human history as evidence.

It’s a hypocritical question. You ask for my evidence, but the burden of proof is not on me. I’m not the one arguing that marriage can be redefined at will.

Aren’t “tradition” and “human history” basically the same in the context in which you’re using them?

Civil marriage is a state-created and state-defined institution. What does biology have to say about that?

Isn’t it interesting how the question doesn’t arise until someone points out that the reason two people get married rather than three or four is because there are two sexes?

When you reject the simple and clear truths, you have to suddenly invent all kinds of extra rules.

Which extra rules are just now being invented?

This is where the SSM argument falls embarrassingly short. Once you reject the male-female nature of marriage, you have no definition left.

Is there no definition of marriage in the 19 states where same-sex couples can legally wed today?

You want to call restriction of marriage to a man and a woman “arbitrary,” but every other attempt to define marriage by a different standard is even more arbitrary.

And that’s why you shift the burden of proof: because your position is far more arbitrary and hypothetical than the normal understanding of marriage.

There Goes the Neighborhood on September 4, 2014 at 2:09 PM

Is there a more ultimate arbiter than the Constitution when it comes to the law in this country?

alchemist19 on September 4, 2014 at 2:30 PM

This is what happens when you have no real argument: you have to resort to demanding the other person answer every question you can think of.

Which is why you now want me to prove how children will turn out if raised by same-sex couples.

And no, “tradition” is not identical with “human history.” Tradition is defined by a context, since a Jewish tradition is not necessarily a Muslim tradition is not necessarily an Egyptian tradition is not necessarily a Russian tradition is not necessarily an African-American tradition is not necessarily a NASCAR tradition.

Which is why I threw in “human history,” because it’s broader than just an American tradition or even a European tradition, or even a Western tradition.

The military draft is a civil law. Does that mean it can have no reference to biology? And yet, it applies to males of a certain age, which is obviously a biological basis. How absurd to argue that “civil marriage” has nothing to do with marriage as it has existed throughout human civilization!

The only reason it’s so important to you to remove the biological and reproductive aspects of marriage from the definition of marriage is so you can substitute your own far more arbitrary definition. It’s like Humpty Dumpty saying, “I’ve decided that’s not what that word means any more. Prove I’m wrong.”

It didn’t change any definition of marriage. The law simply refused to allow marriage between mixed-race couples. In fact, the existence of the law pretty much proved that mixed-race couples were truly married, otherwise there would be no need to ban it.

There Goes the Neighborhood on September 4, 2014 at 2:14 PM

It didn’t change any definition of marriage. The law simply refused to allow marriage between same-sex couples. In fact, the existence of the law pretty much proved that same-sex couples were truly married, otherwise there would be no need to ban it.

There Goes the Neighborhood on September 4, 2014 at 2:14 PM

How are those lines of reasoning different?

alchemist19 on September 4, 2014 at 2:34 PM

Ask yourself why there was a law forbidding marriage between men and women of different races, but there were no laws forbidding marriage between men and men.

The opinion of the Seventh Circuit comes from Richard Posner, a Reagan appointee who just so happens to be one of the most cited legal minds of the 20th century, if not the most cited of all.

This passage from the opinion particularly stands out:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forward with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously.

Ouch.

Well, I said yesterday that the opposition ought to enjoy it while they could. I hope they did!

And no, “tradition” is not identical with “human history.” Tradition is defined by a context, since a Jewish tradition is not necessarily a Muslim tradition is not necessarily an Egyptian tradition is not necessarily a Russian tradition is not necessarily an African-American tradition is not necessarily a NASCAR tradition.

Which is why I threw in “human history,” because it’s broader than just an American tradition or even a European tradition, or even a Western tradition.

OK. Like I said, I’m just trying to understand your thought process.

The military draft is a civil law. Does that mean it can have no reference to biology? And yet, it applies to males of a certain age, which is obviously a biological basis. How absurd to argue that “civil marriage” has nothing to do with marriage as it has existed throughout human civilization!

I understand biology having a basis with the military draft and that leading to exclusions based on age or gender. I can come up with rational reasons for those restrictions, too. What I’m having trouble with is coming up with a rational reason for the restriction you’re championing when it comes to marriage.

The only reason it’s so important to you to remove the biological and reproductive aspects of marriage from the definition of marriage is so you can substitute your own far more arbitrary definition. It’s like Humpty Dumpty saying, “I’ve decided that’s not what that word means any more. Prove I’m wrong.”

There Goes the Neighborhood on September 4, 2014 at 4:49 PM

Does the government not get to set the rules for civil marriage for itself?

Ask yourself why there was a law forbidding marriage between men and women of different races, but there were no laws forbidding marriage between men and men.

Therein lies your answer.

There Goes the Neighborhood on September 4, 2014 at 4:52 PM

I can speculate and come up with any number of reasons why that might have been the case. It’s difficult to know for sure why any group of legislators never did some particular action though.

I had one question I asked before that I really really wanted you to answer and you sort of skipped over it in a longer post so I’ll ask it again here just in case you missed it. How is the goal of raising children into adulthood furthered by excluding same-sex couples from the legal status of civil marriage?

Doesn’t the Federal Constitution guarantee to each of the States, a Republican form of government? So if the People, or their Representatives, decide to ban gay marriage; doesn’t that decision stand as a properly authorized decision, beyond the authority of judges to overrule?

Marriage as defined and recognized by the government (and only the government) for the purposes of conferring legal rights, privileges, obligations and responsibilities as set forth by law. Civil marriage and religious marriage are often the same thing but not necessarily so. A same-sex couple can be religiously married in all 50 states right now if their church recognizes it, though the marriage has no legal force in the 31 states the prohibit it; on the flip side a practicing Catholic can get a divorce to end their civil marriage in the eyes of the state but in the eyes of the church that dissolution probably won’t be recognized and the person will still be religiously married.

Doesn’t the Federal Constitution guarantee to each of the States, a Republican form of government? So if the People, or their Representatives, decide to ban gay marriage; doesn’t that decision stand as a properly authorized decision, beyond the authority of judges to overrule?

ReggieA on September 4, 2014 at 5:17 PM

The states have a lot of freedom to act as they choose but they still have to regulate within the sphere of the Constitution. The federal Constitution sets a floor on the level of rights that a citizen has and if any state tries to use the democratic process to infringe on the protected rights of any minority then it’s the job of the federal courts to step in and stop it.

Just to give an example my conservative and libertarian brethren can agree with, imagine if the state of New York either passed a law or put into their state Constitution a prohibition on owning handguns. Even if it passes overwhelmingly it’s still a violation of the Second Amendment and it would be the federal courts that stepped in and struck that state law down to protect the rights of the minority in this case.

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Marriage as defined and recognized by the government (and only the government) for the purposes of conferring legal rights, privileges, obligations and responsibilities as set forth by law.

alchemist19 on September 4, 2014 at 5:26 PM

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So we’re back to the original argument, of our government using the Christian Bible standards of morality, as the grounds/basis for defining acceptable ‘civil/societal’ behavior, and unacceptable ‘civil/societal’ behavior.

We can hope for the unlikely miraculous of Feldman being upheld, but if not it will be just one more of endless indications that God has handed us over to our Romans 1 godless delusions of godhood as our Founders warned and promised a suicidally doomed post-Christ nation. As Psalms 2 & 115 say, God sits in heaven just laughing at Anthony Kennedy & us as we slit our throats, continuing to call us to repentance of our sins that in Christ we may escape His wrath in heaven forever. Soli Deo gloria!

Try asking; “How is the goal of raising children into adulthood furthered, by excluding” … public recognition of God?

listens2glenn on September 4, 2014 at 5:32 PM

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We can talk about that later. One issue at a time. :)

If you would like to take a shot at answering my original question then I’m all ears.

alchemist19 on September 4, 2014 at 5:48 PM

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God is the ‘originator’ of everything (includes sexuality), and as such, the dispute over “public recognition of God” vs rejection of “public recognition of God” has EVERYTHING to do with your original question.

So we’re back to the original argument, of our government using the Christian Bible standards of morality, as the grounds/basis for defining acceptable ‘civil/societal’ behavior, and unacceptable ‘civil/societal’ behavior.

There is some variation among cultures as to clothing, hair style, and some mannerisms. This is the argument for calling gender a “social construct.”

Even more fascinating than that. More than a few SE Asian, Indian and Pacific Islander cultures don’t even believe in binary genders. One Indonesian ethnic group, the Bugis, has five distinct gender roles: male, female, female-male, male-female and no gender ( “bissu” ).

But when I mention surgery and hormone treatment, then we’ve moved far beyond cultural variations on gender roles. To take the “social construct” argument as a defense for sex change surgery and hormone treatments is staggeringly dishonest.

I’ll do you the courtesy of assuming you just hadn’t realized how dishonest your argument is.

There Goes the Neighborhood on September 4, 2014 at 12:06 PM

I make no claim to know anything about gender dysphoria, other than knowing the medical and mental health professions’ recommended remediation of it is, in fact, sex change surgery and hormone treatments.

Having known several transgendered individuals, the remediation was life saving for them and incredible improvement in their quality of life. Doesn’t affect me, why should I care if their happier and healthier?

Finished with the whole opinion and it’s absolutely brutal from start to finish.

The Ninth Circuit is up for their turn hearing their version of this case next week. Given the liberal tendencies of that circuit and the established precedent there for heightened scrutiny when it comes to sexual orientation it was always going to be an uphill climb for Idaho and Nevada but the luck of the draw for judges on the panel still had a slight chance to save the day. So I checked the panel assignment. This case drew two Clintonistas and Stephen Reinhardt. If you don’t follow the courts that closely, Stephen Reinhardt is probably about the single most liberal member of the entire federal judiciary. If you have a darker sense of humor and can momentarily divorce yourself from your personal opinion on this issue, it’s comically funny how bad that draw went for the states seeking to uphold their statutes. Normally I hate to be presumptuous but I think I know how that panel is going to rule.

Taking a quick look at where things stand right now of the 11 federal appeals circuits, every state in three of them (the 1st, 2nd and 3rd) already allow same-sex couples to marry. The 4th, 7th and 10th circuits have already ruled against the states, and the 9th is going to join them sooner rather than later. There’s no appeal pending to the 8th or 11th circuits yet, and the 5th circuit – the most conservative in the country – has an appeal pending from Texas and is about to get one from Louisiana but that court is dead set on taking their time. That leaves the 6th Circuit which has already held hearings on an appeal, those oral arguments were dicey and there has been no ruling as of yet. At this point I want the 6th Circuit to rule to uphold the state bans so that we get a circuit split between the 6th and the 4th, 7th, 9th & 10th so SCOTUS can’t duck the issue for the coming term and we get a final ruling next June instead of delaying until 2016.

So we’re back to the original argument, of our government using the Christian Bible standards of morality, as the grounds/basis for defining acceptable ‘civil/societal’ behavior, and unacceptable ‘civil/societal’ behavior.

listens2glenn on September 4, 2014 at 5:51 PM

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How does that square with the Establishment Clause?

alchemist19 on September 4, 2014 at 6:11 PM

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“Government using the Christian Bible standards of morality, as the grounds/basis for defining acceptable ‘civil/societal’ behavior, and unacceptable ‘civil/societal’ behavior” doesn’t constitute government establishing a religion.

“Christian Bible standards of morality” are NOT equivalent to “Sharia law.”

The Founding Fathers chose Christian Bible moral standards, because they worked whenever they were enforced. Our biggest problems early on in the history of the U.S. were when government didn’t enforce these standards on ITSELF (allowing institutionalized slavery, treating the native tribal Americans inhumanely AFTER breaking treaties that had been made with them, etc).

Moral standards have to be ‘uniform’ (or “standard”), otherwise you have anarchy.

Let’s try this mental exercise for starters; if all homosexual activity ended, what would be the impact on society? Now…if all heterosexual activity ended, what would be the impact on society?

Ricard on September 4, 2014 at 9:33 PM

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There has to be some reason that “mental exercise” is invalid . . . . . can’t imagine what it might be, though.
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But I’m sure there’s someone here who believes it’s invalid, and will get back to us … eventually.

Let’s try this mental exercise for starters; if all homosexual activity ended, what would be the impact on society? Now…if all heterosexual activity ended, what would be the impact on society?

Ricard on September 4, 2014 at 9:33 PM

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Is anyone seriously considering ending either one of those? If not then what’s the point of the exercise?

alchemist19 on September 4, 2014 at 10:39 PM

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Someone is going to put a stop to one of those … but for now, the point is that one of them is a necessity to the perpetuation of a healthy society, and the other one is just pure, hedonistic pleasure … never mind the AIDS virus, or the ABNORMALITY of it.
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A healthy society CAN continue perpetually … without hedonistic-pleasure-seeking.
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A healthy society can NOT continue perpetually, without recognition of God.
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Ned Flanders has spoken.

Is anyone seriously considering ending either one of those? If not then what’s the point of the exercise?

alchemist19 on September 4, 2014 at 10:39 PM

One does not require “seriously considering ending either one of those” to legitimately ponder the question, gain understanding of the topic you asked about (“value determination”), and the truths that may result…unless one is deathly afraid of answering.

One does not require “seriously considering ending either one of those” to legitimately ponder the question, gain understanding of the topic you asked about (“value determination”), and the truths that may result…unless one is deathly afraid of answering.

Ricard on September 4, 2014 at 11:09 PM

This all started with a your statement about the value couples provide to society and I’m just trying to better understand what you meant by that, then you veered wildly into something about if people stopped having sex. Is the value of a couple to society limited to their sexual activity?

I was also of the opinion that “privatizing marriage” was a problem. But my argument went this way. If you argue that marriage is religious, then how long until the libs censure every use of “wife” and “husband” as the gratuitous presence of religion being injected in a perfectly sterile atmosphere of public equals.

The other potential outcome is that religious people haven’t copyrighted terms. So the same colloquial use of “wife” and “husband” that went on 4 years ago, would continue. So a woman or a man talks about their “husband”. He might not be a “husband” in the eyes of everybody. But they’ll marginalize that away, anyway. So that “marriage” comes to describe the legal commitment that straight religious people have and everybody has.

The alternative family crowd has been popularizing the alternative definitions of “family” in the first place for years. And unless you be effective from a position of looking simply stodgy insisting on a particular definition of “marriage” and “family”, it really amounts to a peculiar belief and a somewhat idiosyncratic and dogmatic view of terms.

It’s like “privatizing” a special relationship that I had with my brother. Some people can find it “weird”, some can find it “nothing special”, some can find it “quirky” and others can think it’s built on “rape culture” of some sort, or even structured on the wrong values from what they think relationships should be constructed. Because when it breaks down to one person’s opinion about what words should mean or how people should relate to each other, versus another’s simply becomes a matter of parlance, and the most common meanings apply.

I AM giving you my answer an a manner that will best address your (previously stated) interest of ‘understanding what I meant by value to society.’ Plus, by answering the questions two things will occur; you’ll begin the process of knowing my thoughts in terms of understanding rather than ‘argumentative posturing.’ Secondly, it will show your interest in dialogue as opposed to mere confrontation.

I’ve been posing questions in an effort to engage in dialogue. I’m trying to understand your positions because I feel it’s necessary to do that before I attack them, assuming an attack is even warranted.

Does that mean that the only value of a couple to society is their sexual activity? If you like I’ll even narrow that to “their ability to sexually procreate”?

Let’s try this mental exercise for starters; if all homosexual activity ended, what would be the impact on society? Now…if all heterosexual activity ended, what would be the impact on society?

Ricard on September 4, 2014 at 9:33 PM

If we’re talking about people voluntarily ending said activity, then yes, the obvious answer is nothing and the human race becoming extinct, respectively.

If we’re forcing everyone to end homosexual or heterosexual activity, then the answer, either way, is there will be riots and resistance, probably on a smaller scale for the first than the second.

Either way, that’s a strawman argument as the second premise is NEVER going to happen. The only way I could see that happening is if the gays completely conquered the country and set up a strict totalitarian police state to herd the disobedient hetero populace into sterilization camps.

“Christian Bible standards of morality” are NOT equivalent to “Sharia law.”

The Founding Fathers chose Christian Bible moral standards, because they worked whenever they were enforced. Our biggest problems early on in the history of the U.S. were when government didn’t enforce these standards on ITSELF (allowing institutionalized slavery, treating the native tribal Americans inhumanely AFTER breaking treaties that had been made with them, etc).

Moral standards have to be ‘uniform’ (or “standard”), otherwise you have anarchy.

listens2glenn on September 4, 2014 at 8:09 PM

The problem with that is… eventually the courts start scrutinizing those standards, and they’ll get to those rules that have no legitimate reasoning to them other than “God said so” and justifiably strike them down. That’s why we can have laws against murder, rape and slavery – they run afoul of the Constitution’s protections to “life, liberty and property” – but strike down the laws against homosexual activity between consenting adults or government recognition of same-sex marriage, since the Equal Protection Clause has been proven in court to cover those two issues.